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Divorce is never easy. The Denver family law attorneys at Plog & Stein see the emotional and financial toll divorce can have on a family. As such, we strive to provide clarity and great outcomes in uncertain situations. Divorce cases in Colorado can entail various issues aside from custody, including alimony, division of property, and division of debt. Though an experienced attorney can help provide clarity in any divorce case, there are gaps in Colorado statutes which leave one scratching his or her head, pondering what the legislature was thinking when it left things out of statute which should be simple, and just make sense?

1. C.R.S. 14-10-113 is the statutory section related to the allocation, or division, of marital assets or property. Statute lays out various rules related to the definition of property and how a court might divide such. The division of property, whether related to real estate, financial accounts, or even pots-and-pans or furniture, is a common issue in divorce cases. Oddly, one issue so intertwined to the division of property is completely absent from the statutory section encompassing Colorado divorce law, that being DEBT. The Uniform Dissolution of Marriage Act, C.R.S. Title 14, Article 10, is completely void of a section, or even explanatory language, related to debt. In practice, a Colorado divorce lawyer will look at a case from a balance sheet standpoint, trying to essentially equalize the allocation of property and debt. Maxims which hold true regarding property, such as premarital property is separate property, also hold true for debt. For example, student loans brought into the marriage or a credit card balance stay with the person bringing those obligations in and they are not part of the marital mix. Why? This is just the way it’s done.

The Colorado legislature could, and should, take the time to codify how marital debts and separate debts are commonly treated in the court, or in a negotiation setting. It is mystifying that one of the cornerstone issues of contention in any divorce case warrants no mention in statute. Furthermore, statute could go further, after even referencing debt, and define what is marital. Debates often arise regarding whether certain debt is marital. For example, credit card debt, regardless of how titled, used for food, clothing, shelter, family endeavors, etc., is generally considered martial. Contention arises when one person has credit card debt for his or her own personal expenditures, such as a trip to Las Vegas or perhaps plastic surgery. Some of the debate could be eliminated by clear statutory language defining what debt creates the negative part of the marital estate and what does not.
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sand-84589_640.jpgRepresenting clients during a divorce case is only part of our Denver family law practice. If a couple has children who are under the age of 18, our clients’ responsibilities continue long after the judge grants the divorce, and we are there to help. (Please note that Colorado courts no longer use the word “custody,” but since it remains a familiar term, we will use it here.) Vacations, especially during summer breaks from school, are an important part of childhood, but as great as summer vacations can be, they can also be a major source of conflict between parents who share custody. How does Colorado family law handle this sort of situation?

As a general rule, it is always a good idea to notify the other parent of a planned summer vacation. A parent may be legally obligated to get the other parent’s permission for a trip, however, based on two factors: the timing of the trip and the destination.

Timing of a Summer Vacation

A parent can schedule a vacation during one of their designated periods of summer visitation without necessarily needing the other parent’s permission. Most parenting plans allow alterations to the established schedule with both parents’ agreement, such as if a planned vacation is only possible at a time not covered by the existing parenting plan. It should go without saying that it is absolutely critical to get any sort of agreement like this in writing.
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Part 1 of this article focused on gaps in Colorado statute related to child support. Though the law is comprehensive, it’s not perfect. Colorado family law and custody practitioners repeatedly experience situations in cases, whether divorce, custody, or otherwise, in which they say to themselves, “statute should clearly state….,” or “this gray area would be easily resolved if the legislature had only gone one step further.” I could sit in my office for hours finding various holes in our family law statutory sections, where just a little more clarity might take away some of the ambiguity that parties, lawyers, and judges face. The second part of this multi-part posting will focus on various gaps in custody and visitation laws and will also suggest potential, easy solutions to such.

1. A very common questions I’m asked is “at what age do my children get to choose who they live with or when they see the other parent?” The proper answer, under Colorado custody laws, is “there is no magical or statutory age at which kids get to decide as to custody or visitation.” In practice, most courts will generally start to give kids more autonomy around age 14. By 16 or 17, most courts will give significant weight to the child’s wishes. Regardless of age, families and children are bound by the ambiguity in Colorado law, which often leads to legal wrangling and court battles over what to do with teenagers. Pursuant to C.R.S. 14-10-129, one must technically show either physical endangerment or significant emotional impairment to a child’s development in order to change primary residential custody. What about situations in which that 16 year old come out and says, “I want to go live with mom?” Technically, if there is no physical or emotional danger at dad’s home, the change in custody should not occur. It’s time for Colorado statute to catch up to the laws of some other states. I represent clients in various states throughout the county. Many of them indicate, “well, if the child was in my state he would get to decide at age “X.” Often times I hear 14. The youngest I commonly hear is age 12, in Florida. Though a 12 year old should not be vested with deciding where to live, or what parenting time to exercise, a bright line age set forth in Colorado statute, such as 15, could cut down on significant amounts of litigation related to older teenagers. Beyond legal battles over modifying residential custody, a concrete age would also assist in initial divorce case in which there is a teenager. It would also alleviate litigation under C.R.S. 14-10-129.5 related to enforcement of parenting time orders. I’ve seen too many cases over the years in which a teenager says he or she doesn’t want to go to the other parent’s home, contrary to the court orders. These situations, sad and difficult in the first place, are often mad worse when the other parent decides to bring first parent to court for violation of the orders. Though some judges and experts recognize that the first parent cannot physically pick up that 5 foot 10 inch child and throw him into the car, some judges do not. Courts can take violations of orders seriously and such can potentially even lead to jail time. Again, a bright line rule as to age would end these battles over enforcement of visitation orders, and lighten court dockets. As one wise family law judge puts it, “a teenager is like an 800 pound gorilla and you can’t make that gorilla go where it doesn’t want to. The teenage years are crazy enough. A little clarity in statute might help take out some of the drama for all. Of course, with underdeveloped brains and raging hormones, statute would need to have caveats to full autonomy, such as might relate to substance abuse, violence, lack of academic guidance or significant mental illness in one party’s home. Absent those things, and with two good parents, a 15 year old should have a choice and parents should have clear guidance as to the law.
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As experienced family law attorneys in the Denver area, we have seen a multitude of situations over the years in divorce, custody and child support cases. Having represented more clients than easily countable, we have observed certain scenarios arise, now and then, for which there is no specific statutory remedy or answer. In other words, we sometimes find ourselves pondering or debating why the Colorado Legislature, with multiple members and input from the domestic relations bar, could leave certain aspects of statute vague or with no specific rule? As we see these types of issue arise over and over, so should other attorneys. Regardless, the gaps go unchanged. Below are some of those gaps in statute, related to child support, which are in need of bridging through additional language.

1. C.R.S. 14-10-122 is the statutory section dealing with modification of child support. C.R.S. 14-10-122 indicates that a modification of child support can be applied retroactively to either the date a motion is filed, or when an agreed upon change in custody of a child occurs. The second scenario will still ultimately require a motion. The rationale in this retroactivity is that it can take some time for parties to actually obtain a court hearing and get a change to child support change formally effectuated or ruled upon. Despite these protections afforded to the parties, there are still instances in which statute could provide more guidance. One relates to stopping child support upon that change in custody, whether agreed upon or not. We have seen cases in which the child goes from mom to dad, or vice versa, and contrary to the terms of the current custody orders . In some cases, one party may take on the custodial obligations for the child, but continues to be saddled with paying the child support obligation until such time as the matter goes to court, if at all. Realistically, as simple rule indicating that when custody changes, regardless of agreed upon or not, the duty to pay child support automatically abates until such time as a hearing occurs. With this type of a black and white rule, the party taking custody of the child is not burdened with technically having to pay the other party until such time as a court hearing, which can take months. As a matter of fairness and financial practicality, the party obtaining custody shouldn’t have to go to court for other proceedings to get his or her Colorado child support stopped. Of course this is a separate issue from whether he or she wants to receive child support. Simple language, such as “when a change in primary residential care occurs, regardless of the reason, and regardless of whether the new custodial parent seeks a modification, the obligation to pay child support shall automatically be abated until such time as a hearing is held.” This language would not eliminate the potential for factual he-said/she-said arguments. It would, however, provide immediate relief.
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yellow-aspen-trees-9-1100273-m.jpgIn a Colorado divorce, when the court divides property, it must determine whether an asset is marital (subject to division) or separate (not subject to division). Generally, marital property doesn’t include property that spouses obtained before marrying or that they have agreed will remain separate. If a spouse places separate property into joint ownership with the other spouse, however, the court presumes he or she intended it to be marital property. This presumption can be rebutted by clear and convincing evidence. However, if separate property is commingled with marital property such that it can’t be traced back to separate property, it is transmuted into part of the marital estate.

In re the Marriage of Amy Corak and Nevan Corak considered a husband’s appeal of a Colorado trial court’s allocation of marital property. The case arose in 2010 when a couple entered into a prenuptial agreement. The agreement identified assets that would be separate property, which included a parcel of the husband’s property (“Shoshone”). All separate property was supposed to remain separate property if the marriage ended.

A month after the couple married, they purchased the Pinyon property. The husband pledged Shoshone as collateral for a home equity line of credit. This was to be used as a down payment for the new marital property. The couple decided they would use $16,000, drawn from the line of credit, to pay off the wife’s credit card debt from before the marriage.
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An experienced Denver family law attorney knows that a critical factor in how a case could be decided, should it go to full blown litigation, or a trial, is which judge the case will be in front of. In the body of law that encompasses divorce, child support, and custody, there are certain facts that leave little room for discretion in terms of how a court might rule. This could be a situation in which all monetary figures are known in a child support calculation and the only thing to be done is to apply the statutory formula. However, there are many other areas, such as determining visitation (parenting time) or equitable division of marital property in which a judge is given a wide range of latitude to render decisions she or he feels is in the child’s best interest or is “equitable.” With the presumption that all area judges render decisions in an ethically “fair” or appropriate manner, the reality is that subjectivity in terms of how a judge views a specific issue can come into play. It’s just human nature.

With years of experience, our attorneys strive to learn about each judge and to ascertain his or her leanings on the various family law topic which might arise in a case. As such, one of the first questions I will ask a client who comes to us with a case already under way is “which courtroom is your case in?” or “what judge or magistrate do you have?” Of course, I will then let the client know my opinion on how I think a particular issue will be dealt with. Sometimes, we may get case in which we know our client will have a tougher time meeting his or her objectives due to the courtroom he or she is in, or that the case might go a completely different way if heard somewhere else. At those instances, it is not uncommon for the client to ask “can we request a new judge?” In those instances, our response will almost always be, “no.”
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Whether a Douglas County divorce attorney, or one practicing just below the slopes of the Aspen ski hills, we all know the importance of financial disclosures in any divorce case. Colorado Rules of Civil Procedure rule 16.2 sets forth the procedural aspects, or rules, a court expects parties, with or without attorneys, to follow related to case management. This includes rules regarding disclosure of documents and information related to the financial issues of a divorce case, which can include property division, debt division, maintenance (alimony), and child support.

Sadly, from time to time, we see cases in which one party will attempt to hide assets from the other party. In most cases people are forthcoming, understanding that they are indicating to the divorce court, under penalty of perjury, that they have provided a complete listing of their assets and debts. However, every once in a while, you will get that one person who feels they might get away with not disclosing a bank account, stock account, or perhaps that tangible piece of property, such as artwork or a piece of expensive jewelry. Of course, there are limitations to what an attorney, or even a private investigator, might be able to find. In employing the tricks-of-the-trade, family law attorneys know how to go through the various financial disclosures to assess whether there are other items being concealed. Of course, this is not full proof. Likewise, people may come to an attorney after their divorce is done, indicating they believe the other side hid something from them. Fortunately, whatever the situation, statute affords parties to a Colorado divorce case a remedy, via a 5 year window, in which to seek relief should hidden or undisclosed assets become known.

Initially, C.R.C.P. Rule 16.2(e)(2) requires the parties to a divorce case to voluntarily disclose the following as can relate to assets:

A “Sworn Financial Statement”
The last three years of personal (and business if applicable)
Personal financial statements Business financial statements Real estate documentation Investment account statements Retirement account statements Employment benefit statements Bank statements Income documentation Insurance documentation Continue reading

hands-1402625-m.jpgChild support in Colorado is calculated according to the Colorado Child Support Guideline found at C.R.S. 14-10-115, revised in January 2014. In Denver and the surrounding areas, divorced parents must meet their child support obligations until the child is emancipated. This happens when the child graduates from high school, turns 19, joins the military, marries, becomes self-sufficient, or dies, whichever is earliest. Child support orders entered after July 1, 1997 terminate automatically when the youngest child reaches 19, unless the court has ordered otherwise. Sometimes the court orders child support to extend after this point, such as when a child is physically or mentally disabled and incapable of supporting himself or herself.

What happens if a parent fails to pay child support and the children are out of the home? Child support arrearages–child support that is still owed–must be paid even after the kids move out. The court must modify a child support order if the support is to be reduced for any reason. This means, for example, that if you owe child support for two children, and one child is emancipated while the other is not, you must still pay the total amount of child support until you obtain a modification from the court.

Generally, if you think there has been a substantial change in circumstances that warrants a change in child support, you should consult an Arapahoe County family law attorney to help you request a modification, rather than simply allowing arrearages to accumulate. A parent who is not paid child support for many years doesn’t waive the right to bring a claim for arrearages by delaying in seeking it.
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As we have earlier covered on this blog, same-sex marriages are now legal in Colorado because the United States Supreme Court decided not to hear any appeals regarding the constitutionality of same-sex marriage bans from the 10th Circuit. Now that same-sex civil marriages are recognized in Colorado, divorces are also possible, and with divorce will come child custody and visitation issues. Assuming both partners are legal parents of the child, the same standards will be used for child custody issues as are used when heterosexual couples divorce. The parents may both be legal parents of the child when the child is born into a same-sex marriage or when a non-biological or non-adoptive parent adopts his or her partner’s biological child through a second parent or stepparent adoption. The standard for child custody and visitation in that case will be the best interests of the child under C.R.S. 14-10-123.4. However, if only you or only your same-sex spouse is your child’s legal parent, you may need to bring a paternity or maternity petition in order to obtain custody and visitation when you and your spouse separate. Based on prior case law, it does not appear that Colorado child custody and visitation proceedings will be handled any differently because of the legalization of same-sex marriage. In general, it is to be expected that the Colorado courts will place the child’s best interests first and award parenting time to the parent who is not a legal parent when that parent has acted as a parent throughout the child’s life, and when there is no other biological parent whose rights would be affected. Continue reading

anxious-1-867286-m.jpgRecently, there has been significant public attention to issues of domestic violence around the nation. Domestic violence is a pattern of abusive behavior within a family or other intimate relationship. It can include spousal abuse or child abuse, and it can go beyond physical violence, including verbal abuse, emotional abuse, economic abuse, and psychological abuse. Last year, more than 10,000 domestic violence misdemeanor cases were filed, and this drop of 13% is considered an improvement. It is not uncommon for an abusive spouse to claim that he or she will take the kids, or take away support or insurance so that the kids don’t have money. Under the Colorado Victims Rights Act, a perpetrator cannot take away kids or housing.

Under § 14-10-124(1.5)(a)(IX) and (X), C.R.S.2005, a Colorado court is supposed to consider whether one of the spouses has perpetrated child or spousal abuse when making an allocation of parenting time. However, a finding of child abuse or spousal abuse doesn’t automatically result in the court denying parenting time to the parent who perpetrated the abuse, even though it is a relevant factor to determining the child’s best interests. In many cases, the parent who has been charged with child abuse, for example, has worked on issues with a therapist and ultimately the parenting coordinator, and others agree that he or she can have parenting time or even be the primary residential parent.

How do the courts decide these difficult cases? In general, the courts will look at whether the perpetrator received therapy or counseling, how far in the past the incident was, the healthiness of the attachment between the perpetrator and the child, the impact of the abuse on the child, and the perpetrator’s ability to put the child’s needs first.
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